93 A.D.2d 842 | N.Y. App. Div. | 1983
— Appeal by defendant from a judgment of the County Court, Suffolk County (Best, J.), rendered January 8, 1982, convicting him of grand larceny in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. Up until July 19,1980, defendant was the plant engineer for the Deer Park plant of Germaine Monteil Cosmetiques, Inc. (hereinafter Germaine). He had been employed by Germaine since 1967 or 1968. On July 19, 1980, he was accused of stealing eight boxes of cosmetics from Building No. 450 at the Deer Park plant, and, as a result, his employment with Germaine ended. Defendant was a senior management employee. His immediate supervisor, Joseph Semoff, testified that, as a senior employee, defendant was allowed to take merchandise for family use and a few pieces for charitable distribution. However, if the charitable donation was to be for more than 10 or 15 items, a letter from the charity with Semoff’s approval was necessary. Prior to trial, Semoff had examined the contents of the eight boxes defendant allegedly stole. There were approximately 3,000 assorted pieces in the boxes, worth about $18,500. He stated that he had no recollection of seeing a letter from a charity requesting these items, and that, in any case, under no circumstances would he have approved a donation of that number of items. Furthermore, he would never have permitted a contribution of the type of cosmetics in the boxes, which were classified as “active” products, still available on Germaine’s order sheets. Defendant testified that in addition to his regular duties, he was designated by Semoff as being the person responsible for distribution of merchandise “for charitable organizations, for friends of the company, for [Semoff’s] personal friends, for vendors that we did business with and for other people who may have been of good use to the company”. This was confirmed by other defense witnesses. According to defendant, he had “carte blanche” authority from Semoff to authorize gifts and donations, and no